A New Special Issue on the Rule of Law and Human Mobility in the Age of the Global Compacts – Classics in New Refractions

Contribution by Dr Tamas Molnar (legal research officer, EU Agency for Fundamental Rights; visiting lecturer, Corvinus University of Budapest, Hungary)*, Dr Marion Panizzon (senior research fellow, World Trade Institute, University of Bern, Switzerland) and Dr Daniela Vitiello (researcher in EU law, University of Tuscia, Italy)

* The views expressed in this blogpost are solely those of the author and its content does not necessarily represent the views or position of the EU Agency for Fundamental Rights.

7 June 2022

Setting the Scene: “It Is a Bird, It Is a Plane, It Is a Global Compact!”

Cross-border human mobility remains a “vision” for many and becomes a reality for others. The United Nations (UN) Global Compact for Safe, Orderly and Regular Migration (GCM) assists in the legal aspiration to turn dangerous routes and unsafe journeys into legal pathways by “strengthening international cooperation” for effective migration management (Objective 23). Still, the sovereign right of States to decide whom to admit limits migration trajectories, while a diversified toolbox of multilateral treaties, bilateral agreements and a plethora of soft law instruments govern other phases of the trajectory. Within this spectrum, the GCM takes a central place as the “first intergovernmental agreement prepared under the auspices of the [UN], to cover all dimensions of international migration in a holistic and comprehensive manner” – borrowing the words of the Office of the UN High Commissioner for Human Rights.

Although the guiding principles, objectives and planned actions set out in the GCM are only “politically binding”, this does not mean that they are devoid of legal effects. Such legal effects include prompting harmonization of national legislations, initiating bilateral agreements and partnerships, or fine-tuning a legal concept. Although there are tenable arguments suggesting that the soft legal nature of the GCM risks to weaken the normative edifice built by the UN human rights framework, it remains to be seen how the advantages of informal international law-making in the field of migration outweigh its perceived risks. Bufalini, among others, highlights two advantages of the GCM as soft law: non-legally binding instruments enable States to rapidly clarify their positions and expectations on heated topics, while avoiding the time-consuming process of both the conclusion of a treaty and its domestic ratification.

Next to unveiling its legal nature and (non-)binding character (see e.g. Gammeltoft-Hansen et al., Gavouneli, and Chetail), the human rights anchorage of the GCM and the GCR has equally sparked the interests of both scholars and practitioners (see e.g. Guild). Respect for human rights figures as one of the guiding principles and the GCM self-proclaims being grounded in the 1948 Universal Declaration of Human Rights and the nine core UN Human Rights Conventions. However, human rights are only one of the tenants of the new cooperative framework under the GCM; a framework within which the principle of good global governance – forming a stronghold of the Global Compact for Refugees (GCR) – fails to be fully acknowledged as a “guiding principle”. Likewise, the primacy of human rights, with a view to superseding State sovereignty, is neither proposed nor implied in the GCM.

A Special Issue of MDPI ‘Laws’ Offering Fresh Insights into the Classics with New Dynamics

Against this backdrop, a number of intriguing scholarly questions arise, inter alia, in the forcefield of the two Global Compacts:

• Which relations exist between the rule of law and the governance of human mobility within the Global Compacts?
• What kind of legal effects can these soft law instruments produce; and are these legal effects – under certain conditions – more effective than the implementation of hard law?
• Does the dominantly political nature of the commitments in the GCM exclude or include that some standards might produce legally binding effects?

In a collection of seven articles, a new Special Issue for MDPI ‘Laws’ entitled “The Rule of Law and Human Mobility in the Age of the Global Compacts” discusses, among others, how (national and regional) legal systems might “embed” the global soft law setting out the cooperation frameworks on international migration governance. Also, this Special Issue looks at possible legal bases for formally incorporating the two Global Compacts’ commitments; and whether establishing congruence and a subsequent duty of implementation is rather one of systemic interpretation resembling to Article 31(1) of the 1969 Vienna Convention on the Law of Treaties read in conjunction with the objective of progressively developing international law (see also Ammann). Similarly, the role played by the GCM guiding principles – which might exist as general principles of law (rule of law, non-discrimination, non-regression) – in interconnecting soft law to hard legal obligations are put under scrutiny. Special attention is devoted to regional practices, especially at the European Union (EU) level, taking into account the prominent role played by EU cooperative models in shaping concepts and governance mechanisms envisaged by the Global Compacts. These and other questions have guided the authors of the pieces making up this Special Issue which are summarized hereunder.

Guiding Principles of the Global Compacts

Guiding principles serve to create a common narrative – the same holds true for those of the GCM. Allinson, Guild and Busuttil posit that the Global Compacts incorporate guiding principles (GCR) and crosscutting and interdependent legally binding obligations (GCM), at the forefront of the duty to respect, protect, and fulfill human rights. This article discusses how the GCM and GCR, despite being non-legally binding, can constitute an interpretative tool prompting adherence to three legal principles: the rule of law, the non-retrogression of human rights and the principle of non-discrimination. The authors argue that the EU asylum acquis – as interpreted by the Court of Justice of the EU (CJEU) – cannot disregard the principle of non-retrogression as enshrined in the Global Compacts, when interpreting the EU Charter of Fundamental Rights.

The Global Compacts’ Impact at the EU Level: Puzzling Realties

Cornelisse and Reneman analyse the (potential) role of the Global Compacts in the development of EU law concerning asylum seekers who arrive at the EU external borders. Despite widespread violations of their fundamental rights at the EU external borders, the New EU Pact on Migration and Asylum presents integrated border procedures as important instruments to “deal with mixed flows” and make the Common European Asylum System (CEAS) work. The authors underscore that the EU legislator has not substantiated the claim that border procedures will contribute to achieving the aims of the CEAS, such as the creation of a uniform, fair and efficient asylum procedure, preventing abuses. Neither does the Pact provide a solution for pushbacks and systematic use of immigration detention, nor does it guarantee the quality of the asylum procedure. The article thus concludes that these new legislative proposals ignore the standards of the Global Compacts, and ask the question: What role can the Global Compacts still play in the ongoing negotiations over the legislative proposals present under the EU Pact?

Still remaining in the EU context and set against the background of emerging CJEU jurisprudence as a response to the “rule of law crisis” in some EU Member States, the contribution by Favi aims at investigating this CJEU’s jurisprudence through the lens of the Global Compacts. This leads to reflect on how the CJEU’s caselaw could be seen as an effective tool to enhance the rule of law and protect third-country nationals, at least within the EU, and to what extent it can indirectly contribute to increasing compliance with some of the commitments laid down in the Global Compacts, regardless of the position taken by some recalcitrant EU Member States with respect to these universal instruments.

A third article in this strand by Vitiello (forthcoming) takes the regional (European) practice of border ‘securitisation’ and the management of large flows of refugees and migrants at the EU level as a case study to investigate the interplay between the quest for safe, orderly and regular migration via global partnerships (Objective 23 of the GCM) and States’ commitment to manage borders in an integrated and coordinated manner (Objective 11 of the GCM). With a view to contributing to the debate stimulated by the forthcoming first International Migration Review Forum (IMRF), the article elucidates the conditions under which the ambivalent interaction between the quest for regular pathways and the cooperation on border management may lead to the enhancement – or (vice versa) to a further dilution – of the legal entitlements of migrants and refugees.

National Perspectives on the Global Compacts: The Case of India

Atul and Singh, in their piece analysing the impact of the GCR on Indian statutory and judicial practice over access to asylum for Afghan refugees, similarly caution against overrating the benefits of the Global Compacts and unquestioningly elevating the virtues of soft law therein. In the case of India, where non-refoulement, access to asylum, to due process and to essential services for migrants and refugees are court-adjudicated, the intake of the GCR by the Indian government has exacerbated an upfront confrontation of what happens when no domestic legislation is in place to absorb the objectives and political commitments assumed at the international level.

Implementation and Review of the Commitments in the Global Compacts: Selected Issues

Prospectively, in light of the forthcoming first IMRF, a pressing challenge is to ensure the effective implementation and oversight of the undertaken obligations in the Global Compacts. Unlike the Agenda 2030 for Sustainable Development, whose progresses towards the 17 Sustainable Development Goals are tracked by numerical indicators and targets, such benchmarks are absent in the GCM. Two forthcoming articles of the Special Issue deal with the issue of monitoring the implementation of the GCM’s objectives, from different perspectives.

Yildiz stresses that, as the international community could not agree on benchmarking, the GCM’s monitoring and review mechanisms fail to build sufficient peer pressure to nudge States towards facilitating human mobility triggered by disasters and climate change. Her article contributes to a better understanding of the limited translation into action of States’ commitments related to disasters and climate change under the Global Compacts.

Another illustrative case in point concerns detention-related commitments, representing a highly sensitive topic as well as a controversial – and very intrusive – immigration law enforcement measure. As Majcher  argues, States committed to use immigration detention only as a measure of last resort and to work towards alternatives in Objective 13 of the GCM, drawing from eight sets of actions to attain this commitment. She uses immigration detention as a case study to submit that synergies between the GCM’s commitments and existing human rights regimes can boost the mechanisms for monitoring States’ implementation. For instance, given the similarities between the IMRF and the Universal Periodic Review under the auspices of the UN Human Rights Council, the latter could inspire legal and policy innovations for improvement of the GCM review and oversight. The author concludes that there are avenues by which Objective 13 of the GCM could be used to strengthen the rule of law in global migration governance.

The Way Ahead

The Global Compacts for Migration and for Refugees promise more than a compilation (and, according to Chetail, consolidation) of existing international legal standards governing migration and refugees. Yet, as the latest draft of the IMRF Progress Declaration on the implementation of the GCM shows, many of the underlying challenges, including the under-developed concept of the rule of law and due process remain, even if COVID-19 measures taken by many States during the pandemic have temporarily improved the situation and well-being of migrants, “regardless of their status and the phase during the migration cycle”. Far from being permanently encroached in law, a great deal of these domestic legislations are executive (emergency) orders lacking democratic control and disabling due process or access to justice.

Notwithstanding these flaws, States have been given credit for “making migration work for all” as per the 2017 report of the UN Secretary General, even if much of their voluntary reporting dwells deliberately on contingent motivations, often to distract from more contentious and highly debatable policies and practices. As Farhat and Bast  point out in another recent special issue on the GCM, the voluntary nature of reporting before the GCM review bodies inescapably entails a degree of “cherry-picking” by States over which of the 23 objectives they wish to report and over which ones to abstain. Hence, the upcoming Progress Declaration of the International Migration Review Forum in May 2022 will show if and over which political commitments States are most ready and willing to cooperate. The expected 2022 IMRF Progress Declaration will likely shed more light on where gaps persist and ideally, pinpoint to where States agree on a prioritization, which would instill the GCM with a legal dynamic that would promise to move it beyond its current re-affirmation of best practices and desired actions. If States were to re-arrange certain commitments along a scale of “relative normativity”, including by elevating human rights protection to a status further challenging state sovereignty, such a progress would mark a first step towards a “firming up” of the legal tissue of the Global Compacts.

In sum, the Global Compact for Migration has the potential to transform the grip and the profile of international soft law and thereby to re-arrange the cartography of international migration law. Yet, multiplied efforts by legal scholars, practitioners and the civil society are necessary to bring about the kind of meaning-making from the GCM, which might serve to unearth new priorities and a more effective dialogue among the 23 Objectives. In the Guest Editors’ earnest hope, this Special Issue helps generate further discussions around the issues outlined above. The Guest Editors wish you all happy reading!